What Is Divorce Due to Desertion? Conditions, Notice Procedure and Legal Consequences

What Is Divorce Due to Desertion? Conditions, Notice Procedure and Legal Consequences Divorce due to desertion is one of the specific grounds for divorce regulated under Article 164 of the Turkish Civil Code. Where one spouse leaves the other spouse for the purpose of failing to perform the obligations arising from the marital union, or fails to return to the common residence without a justified reason, the deserted spouse may file for divorce if the other statutory conditions are also satisfied. The law also provides that a spouse who forces the other spouse to leave the common residence or prevents the other spouse from returning without a justified reason is also deemed to have deserted the marriage. One of the most important characteristics of divorce due to desertion is that an action cannot be filed immediately. The desertion must continue for a specified period, an official notice to return to the common residence must be issued through a judge or notary, and that notice must remain ineffective. Under Article 164 of the Turkish Civil Code, a request for notice cannot be made before the end of the fourth month of desertion, and a divorce action cannot be filed until two months have passed after the notice. Accordingly, the desertion must continue for at least six months in total. For this reason, in matters involving divorce lawyers in Istanbul, Ümraniye, Ataşehir, Üsküdar and Çekmeköy, it is necessary to examine not merely whether the spouses are living separately, but also the reason for the separation, the intention behind the desertion, the timing and validity of the notice and whether returning to the common residence is genuinely possible. What Is Family Law? Family law regulates legal disputes arising from marriage, divorce and family relationships. Family law includes matters such as: Divorce due to desertion, Divorce due to adultery, Contested divorce, Uncontested divorce, Divorce due to psychological and economic violence, Alimony, Child custody, Pecuniary and non-pecuniary compensation, Liquidation of the matrimonial property regime. Divorce due to desertion differs from general grounds for divorce because it is specifically regulated in the Turkish Civil Code and is subject to particular time limits and a formal notice procedure. What Is Divorce Due to Desertion? Under Article 164 of the Turkish Civil Code, where one spouse leaves the other for the purpose of failing to perform the obligations arising from the marital union, or fails to return to the common residence without a justified reason, the deserted spouse may file for divorce if the remaining statutory conditions are satisfied. Accordingly, the mere fact that the spouses physically live in different places is not sufficient. The separation must have the characteristics described by law and the state of desertion must continue. What Are the Conditions for Divorce Due to Desertion? Under Article 164 of the Turkish Civil Code, the principal requirements are: One spouse must leave the other in order to avoid performing obligations arising from the marriage, or must fail to return to the common residence without a justified reason, The state of desertion must continue, The separation must have lasted for at least six months, A notice must be issued properly through a judge or notary, The deserting spouse must fail to return to the common residence despite the notice. The notice and time-limit requirements are among the principal characteristics distinguishing divorce due to desertion from other grounds for divorce. Does Living Separately Automatically Constitute Desertion? No. Article 164 does not define desertion simply as living in separate residences. The deserting spouse must leave for the purpose of failing to perform obligations arising from marriage or must fail to return to the common residence without a justified reason. Accordingly, spouses temporarily living apart because of employment, health or another justified reason should not be treated in the same way as a spouse who leaves for the purpose of refusing to continue the common marital life. The reason for the separation must be assessed in the particular case. Does Leaving the Home for a Justified Reason Constitute Desertion? The law applies the desertion provisions to a spouse who fails to return to the common residence without a justified reason. Whether the departure or failure to return is based on a justified reason is therefore important. Where the separation is based on a justified reason, the mere fact of physical separation may not be sufficient for the application of the desertion provisions. The reason for leaving and the events leading to the separation must therefore be assessed together. Is a Spouse Who Forces the Other Spouse to Leave Considered the Deserting Spouse? Yes. Article 164 does not treat only the person who physically leaves the residence as the deserting spouse. A spouse who forces the other spouse to leave the common residence is also deemed to have deserted. Accordingly, where one spouse removes the other from the home and later alleges that the other spouse “deserted the residence,” that allegation alone does not establish a right to divorce due to desertion. It is important to determine who actually caused the common life to end. Is a Spouse Who Prevents the Other Spouse from Returning Considered the Deserting Spouse? Yes. Under the law, a spouse who prevents the other spouse from returning to the common residence without a justified reason is also deemed to have deserted. The legal assessment therefore does not depend only on identifying which spouse physically left the home. Conduct preventing a return to the common residence is also legally significant. What Is the Six-Month Period in Divorce Due to Desertion? Under Article 164 of the Turkish Civil Code, the separation must have continued for at least six months and must still be continuing before divorce due to desertion may be granted. However, this six-month period does not simply operate as one uninterrupted waiting period. The law provides that the notice cannot be requested before the end of the fourth month and that at least two additional months must pass following the notice. Can a Divorce Action Be Filed Immediately After Desertion? No. A divorce action based on desertion cannot be filed immediately after the spouse leaves. The law requires a specific waiting and notice procedure. A notice cannot be requested before the end of the fourth month of desertion, and the divorce action cannot be filed until two months have passed after the notice. What Is a Notice to Return in Divorce Due to Desertion? A notice to return is the official request inviting the deserting spouse to return to the common residence. In its assessment of Article 164, the Constitutional Court has described this invitation as a notification constituting a procedural prerequisite for an action based on desertion. The notice is issued before the divorce action and informs the deserting spouse that they must return to the common residence and of the legal consequences of failing to return. Who Issues the Notice to Return? Under Article 164 of the Turkish Civil Code, the notice may be issued, upon the request of the spouse entitled to file the action, by a judge or notary. The Constitutional Court has also stated that granting this authority to notaries does not remove the authority of judges and that judges and notaries may alternatively perform this procedure. Can a Notice to Return Be Sent Through a Notary? Yes. Article 164 gives a notary, as well as a judge, authority to issue the formal invitation requiring the deserting spouse to return to the common residence. The Constitutional Court has stated that this notarial procedure forms part of the requirements for an action based on desertion and that the court hearing the divorce case may review whether the notice was properly issued. When Can the Notice to Return Be Sent? Under the law, a request for the notice cannot be made before the end of the fourth month of the period required for divorce due to desertion. Accordingly, a notice sent immediately after the spouse leaves does not automatically satisfy the procedural requirement under Article 164. The notice must be issued at the time required by law. How Long Must the Spouse Wait After the Notice? Following the notice, the deserting spouse must be given two months to return to the common residence. The law states that an action based on desertion cannot be filed until two months have passed following the notice. The general structure of the statutory period is therefore: The first four months of desertion, The official notice, A further two-month waiting period following the notice. What Must the Notice Tell the Spouse? Under Article 164 of the Turkish Civil Code, the notice issued by the judge or notary must inform the deserting spouse: That they must return to the common residence within two months, Of the legal consequences that will arise if they fail to return. Accordingly, the notice is not merely an ordinary request saying “come home”; it is a formal notification containing the consequences required by law. Can the Notice Be Made by Publication? Yes. Article 164 expressly provides that the notice may where necessary be made by publication. This method may become relevant where ordinary service methods cannot be applied. Whether the requirements for service by publication are satisfied must nevertheless be assessed in the circumstances of the particular case. Is the Notice to Return Itself a Lawsuit? No. The Constitutional Court describes the invitation to the deserting spouse as a procedural prerequisite notification carried out before the divorce action and without examination of the merits of the divorce dispute. Accordingly, the merits of the divorce are not determined at the notice stage. The purpose of the notice is to give the deserting spouse an opportunity to return and to inform them of the legal consequence of failing to do so. Does the Court Examine Whether the Notice Was Valid? Yes. The Constitutional Court has stated that the notice to return constitutes a procedural prerequisite in a divorce action based on desertion and that the court hearing the divorce case reviews whether the notice was issued in accordance with the applicable procedure. Accordingly, the mere existence of a notice is not sufficient; it must comply with the statutory time limits and procedural requirements. What Happens If the Deserting Spouse Does Not Return Despite the Notice? Where the remaining statutory conditions are satisfied, a divorce action based on desertion may be filed against a spouse who does not return to the common residence during the two-month period following the notice. The court will nevertheless examine whether the statutory conditions for desertion were actually satisfied and whether the notice was properly issued. What Happens If the Spouse Returns After Receiving the Notice? Article 164 makes divorce due to desertion dependent on the state of desertion continuing and the notice remaining ineffective. Accordingly, where the deserting spouse returns to the common residence following the notice, whether the statutory condition requiring the notice to remain ineffective has been satisfied must be evaluated. Must Returning to the Common Residence Actually Be Possible? The statutory structure of divorce due to desertion is based on formally inviting the deserting spouse to return to the common residence. It is therefore important whether such a return is genuinely possible and whether the other spouse prevents it. The law treats the spouse who prevents the other spouse from returning without a justified reason as the deserting spouse. Accordingly, sending a return notice while at the same time preventing the spouse from actually returning may affect the assessment of the desertion ground. Why Is Fault Important in Divorce Due to Desertion? The statutory ground of desertion is based on one spouse leaving the common life for the purpose of failing to perform obligations arising from the marriage or failing to return without a justified reason. The law also treats a spouse who forces the other to leave or prevents the other from returning as the deserting spouse. Accordingly, identifying which spouse refused to continue the common marital life and whose conduct caused the separation forms part of the fundamental legal assessment. Is Desertion a Specific Ground for Divorce? Yes. Desertion is separately regulated under Article 164 of the Turkish Civil Code together with its own statutory conditions and formal notice procedure. Unlike general grounds such as irretrievable breakdown of the marriage, divorce due to desertion therefore requires compliance with the specific time limits and notice conditions set out by law. Can Alimony Be Claimed in Divorce Due to Desertion? Alimony claims in divorce proceedings are assessed separately under the relevant provisions of the Turkish Civil Code. Constitutional Court decisions also refer to Article 175, under which a spouse who will fall into poverty because of the divorce and whose fault is not more serious may seek poverty alimony in proportion to the other spouse's financial capacity. Accordingly, depending on the circumstances, a divorce action based on desertion may also involve claims for temporary alimony, poverty alimony or child support. Each of these claims is assessed according to its own legal requirements. Can Compensation Be Claimed in Divorce Due to Desertion? The financial consequences of divorce are assessed separately according to the parties' fault and the other statutory requirements. The effect of desertion on the parties' degree of fault may therefore be relevant to claims for pecuniary and non-pecuniary compensation. Accordingly, a decision granting divorce due to desertion does not automatically mean that a specific amount of compensation will always be awarded; the requirements for compensation must be evaluated separately. How Is Child Custody Determined in Divorce Due to Desertion? Where there are common children, child custody is also determined as part of the divorce proceedings. Custody is assessed separately from the existence of the desertion ground under the applicable family-law rules and the circumstances of the child. The fact that one spouse is considered at fault for desertion does not automatically mean that custody must be granted to the other spouse. A separate custody assessment is required. Which Court Has Jurisdiction in a Divorce Action Based on Desertion? Divorce actions are heard by family courts. In terms of territorial jurisdiction, Article 168 of the Turkish Civil Code provides that a divorce or separation action may be filed before the court at the place of residence of either spouse or the court at the place where the spouses last lived together for at least six months before the action. Accordingly, before filing a divorce action based on desertion, both subject-matter jurisdiction and territorial jurisdiction should be determined. What Evidence May Be Relevant in a Divorce Action Based on Desertion? Relevant evidence may include: Facts demonstrating the date of desertion, Documents showing that the spouses have been living separately, The notice issued through a judge or notary, Documents concerning service of the notice, Documents relating to the common residence and the possibility of returning, Other lawful evidence showing the reason for the separation. The court will also examine whether the notice was procedurally valid and whether the state of desertion continued in the manner required by law. Can a Divorce Action Based on Desertion Be Filed Without a Notice to Return? Under Article 164, an ineffective and properly issued notice is one of the principal requirements for a divorce action based on desertion. The Constitutional Court also characterises the invitation to return to the common residence as a procedural prerequisite for a divorce action based on desertion. Accordingly, the conditions for a divorce action under Article 164 cannot be considered satisfied where the notice procedure has not been completed. How Does the Four-Month and Two-Month Rule Work? The time structure of divorce due to desertion is particularly important. Under the law: A request for notice cannot be made before the first four months of desertion have expired. After the fourth month ends, a notice may be issued through a judge or notary. The deserting spouse is then given two months to return. A divorce action based on desertion cannot be filed before those two months have expired. The statutory minimum six-month desertion period is therefore completed together with the formal notice procedure. Why Are the Time Limits Important in Divorce Due to Desertion? Unlike many other grounds for divorce, desertion is linked to an express statutory timetable. Requesting the notice too early or filing the action before the two-month period following the notice has expired may create problems concerning compliance with Article 164. Because the court may also review the validity of the notice as a procedural prerequisite, it is important to establish the chronology of the case correctly. Is Divorce Due to Desertion the Same as Divorce Due to Irretrievable Breakdown of Marriage? No. Desertion is a specific ground for divorce regulated under Article 164 with its own notice and time-limit requirements. Irretrievable breakdown of the marital union is separately regulated under Article 166 of the Turkish Civil Code. Accordingly, the appropriate legal ground for divorce must be determined according to the facts of the particular marriage and the available evidence. How Are Divorce Lawyer Fees Determined? Divorce lawyer fees do not consist of a single fixed amount. Factors such as whether the case is contested, the notice procedure, the scope of the case, alimony and compensation claims, custody disputes and the overall litigation process may affect the fee. Because divorce due to desertion also includes a pre-litigation notice procedure under Article 164, the scope of legal services may vary according to the individual case. Divorce Due to Desertion Cases in Istanbul In divorce proceedings based on desertion in Istanbul, particular attention should be given to: Why the spouse left the common residence, Whether the separation was based on a justified reason, Whether the other spouse forced the departure, Whether the return to the common residence was prevented, Whether the initial four-month period of desertion has been completed, Whether the notice issued by the judge or notary was procedurally valid, Whether two months have passed following the notice. For this reason, in matters involving divorce lawyers in Istanbul, Ümraniye, Ataşehir, Üsküdar and Çekmeköy, the pre-litigation notice stage should be managed as carefully as the divorce proceedings themselves. What Should Be Considered When Choosing the Best Divorce Lawyer in Istanbul? When researching the best divorce lawyer in Istanbul, relevant considerations may include: Experience in family law, Experience in contested divorce proceedings, Knowledge of the specific requirements for divorce due to desertion, Ability to manage the judge or notary notice procedure correctly, Ability to monitor statutory time limits, Ability to assess alimony, compensation and custody claims together, Ability to develop a legal strategy appropriate to the specific facts of the case. Conclusion Divorce due to desertion is a specific ground for divorce regulated under Article 164 of the Turkish Civil Code. The desertion provisions may apply where one spouse leaves the other for the purpose of failing to perform obligations arising from the marital union or fails to return to the common residence without a justified reason. The law also treats a spouse who forces the other spouse to leave the common residence or prevents the other spouse from returning without a justified reason as the deserting spouse. A divorce action based on desertion cannot be filed immediately. A request for notice cannot be made before the end of the fourth month of desertion, the deserting spouse must be given two months to return through a notice issued by a judge or notary, and the action cannot be filed until two months have passed following the notice. The desertion must therefore continue for at least six months. The Constitutional Court also characterises the invitation requiring the deserting spouse to return to the common residence as a notification constituting a procedural prerequisite under Article 164 and states that the divorce court may review whether the notice was issued in accordance with the applicable procedure. Accordingly, issues such as divorce due to desertion, notice to return, Article 164 of the Turkish Civil Code, contested divorce, divorce lawyer in Istanbul, divorce lawyer in Ümraniye, divorce lawyer in Ataşehir, divorce lawyer in Üsküdar and divorce lawyer in Çekmeköy should be assessed according to the specific marital relationship, the reason for desertion, the notice procedure and the available evidence.